Zhao (Migration)

[2023] AATA 2807

Zhao (Migration) [2023] AATA 2807 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Houying Zhao

CASE NUMBER:  2301720

HOME AFFAIRS REFERENCE(S):          BCC2022/3682458

MEMBER:Stephen Conwell

DATE:22 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

Statement made on 22 August 2023 at 1:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – not holder of substantive visa when application made – application made two days after last visa ceased – factors beyond applicant’s control and compelling reasons for granting visa – stress and confusion – sponsor’s wife in COVID quarantine in country of origin and applicant’s husband’s health – husband’s separate review application – compliance with conditions – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3004

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 January 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 8 September 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, include cl 600.223, which requires the applicant to hold a substantive visa at the time of application or, if not, to meet specified Schedule 3 criteria.

4. The delegate refused to grant the visa on the basis that the applicant did not hold a substantive visa at the time of application and 3004 criteria of Schedule 3 was not satisfied. 

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

7. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of Schedule 3, criterion 3004 for the purpose of cl.600.223(2).

9. According to the decision record dated 27 January 2023, the applicant’s last substantive visa was a Visitor (subclass 600) visa which ceased on 6 September 2022. She applied for the subclass 600 Visitor visa, currently subject to review, on 8 September 2022 and was not the holder of a substantive visa at the time. Therefore, she is required to satisfy the requirements of cl.600.223(2).

10. Clause 600.223(2) requires the Tribunal to be satisfied that, if the applicant was in Australia at the time of the application and did not hold a substantive visa and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, she must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. Her visa application was refused by the Department on the basis that she did not satisfy 3004 as the delegate was not satisfied that there were factors beyond her control which prevented her from applying for the subclass 600 Visitor visa while holding a substantive visa.

11. Schedule 3 criterion 3004 is referred to in the attachment below. In the present case, the issue before the Tribunal is whether the applicant satisfies 3004(c) and 3004(d) which require that:

    (c)  the applicant is not the holder of a substantive visa because of factors beyond the       applicant’s control; and

    (d)  there are compelling reasons for granting the visa.

12. In her application for the subclass 600 Visitor visa filed on 8 September 2022, the applicant stated that the reason for her further stay was, “my husband's hernia become serious recently and can not leave Australia on time. I need to look after him.”

13. On 29 November 2022, the Department wrote to the applicant requesting information in writing on any factors outside her control that prevented her from lodging an application for a subclass 600 Visitor visa whilst holding a substantive visa and whether there were any compelling reasons for the grant of the Visitor visa.

14. On 1 December 2022, the sponsor (the applicant’s son) provided a response claiming that:

    ·     In August 2022 his wife returned to China and his parents (the applicant and her husband) moved from South Australia to help the sponsor care for his two children;

    ·     the sponsor’s wife was placed in quarantine for some time due to China’s health regulations flowing from the global pandemic. It was difficult to communicate with his wife, which led to their failure to apply for the applicant’s further stay before her visa expiry;

    ·     in late 2021 the sponsor’s father was recommended surgery for his hernia however the proposed surgery was cancelled due to the global pandemic;

    ·     the applicant has been caring for her husband as well for her two grandchildren;

    ·     the applicant and her husband have two other adult children and other grandchildren in China – for this reason they have no intention of overstaying in Australia;

    ·     the sponsor wishes the applicant (his mother) to stay and help him care for his two children until his wife returns from China.

15. The delegate was not satisfied that there were factors beyond the applicant’s control which prevented her from lodging the current application for a subclass 600 Visitor visa before the expiry of her substantive visa. Whilst the delegate was satisfied there are compelling reasons for grant of the visa, the delegate found there were no factors which prevented the applicant from lodging a further stay visa during the term of their substantive visa. Consequently the delegate was not satisfied that the applicant met the requirements of criterion 3004 and therefore found that she did not satisfy cl.600.223.

16. The Tribunal notes that the visa application was lodged two days after expiry of the last substantive visa. It notes that at that time the sponsor’s wife was in quarantine in China due to strict Covid-19 restrictions and furthermore, the applicant’s husband’s health was a burden for both the sponsor and the applicant, in addition to the care of the sponsor’s two children. It is further noted that the delegate was satisfied there were compelling reasons for grant of the visa.

17. The Tribunal accepts the parties’ explanation that due to the stress and confusion of their family circumstances at the time that the visa expired, the applicant failed to apply for a further stay before the visa expiry. 

18. The Tribunal notes that the applicant and her husband travelled to Australia together having both been granted Visitor visas valid from 14 September 2021 to 6 September 2022. Due to their family circumstances as described above they failed to renew both their Visitor visas before their visas expired. The applicant’s husband is seeking a merits review in identical circumstances in a related case before this Tribunal.  

19. There is no evidence before the Tribunal to indicate that the applicant had not complied with the conditions of her substantive visa (other than her late application by two days, seeking a further stay).  

20. The Tribunal finds that the applicant was in Australia at the time of application on 8 September 2022 and did not hold a substantive visa at that time. The Tribunal finds that the last substantive visa she held was a subclass 600 Visitor visa which expired on 6 September 2022, two days earlier. Having considered all the evidence, the Tribunal accepts the evidence that due to the stress and confusion of their family circumstances at the time the visa expired, the applicant failed to apply for a further stay before the visa expiry. Consequently, the Tribunal is satisfied that she was not the holder of a substantive visa because of factors beyond her control. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(c).  

21. The Tribunal is satisfied, on the evidence before it, that there are compelling reasons for granting the visa. It is noted that the delegate was of the same view. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(d). The Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to her last substantive visa (other than a condition of which she was in breach solely because the visa ceased to be in effect) and the subsequent Bridging visa. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(e)(ii).

22. The Tribunal is satisfied that the applicant would have been entitled to be granted a visa of the class applied for if she had applied for the visa on the day when she last held a substantive visa. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(f). The Tribunal is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted. Therefore, the Tribunal finds that the applicant meets the requirements of criterion 3004(g). Criterion 3004(h) does not apply in this case.

23. In view of the above, the Tribunal finds that the applicant meets the requirements of criterion 3004 in its entirety.

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

    Stephen Conwell
    Member